‘Stealing is corruption if…’

Mr. Ekpo Nta is the Chairman of the Independent Corrupt Practices and other Related Offences Commission (ICPC). In this interview with Olayinka Oyegbile Deputy Editor and Gboyega Alaka, he talks about the Commission and sheds light on the difference between stealing and corruption.

What is your assessment of the fight against corruption so far?

The fight against corruption so far in this country would have fared better if we all had an agreement on the word corruption, or if we know exactly what we are fighting against. If you don’t know what you are fighting against, then you might be busy fighting other things and thinking you are addressing the problem. We know as an anti-corruption agency what we should be fighting against; the problem now is for us to be able to convince the stakeholders and the general public as to what constitutes corruption. It is when there is a synergy in this regard that we all will now be able to work in synergy towards elevating it.

This comes a bit surprising. Are you saying that we all never exactly knew the true meaning of corruption? What exactly is corruption?

Our definition of corruption must certainly go by international definition. For instance, why did we have to set up an anti-corruption agency when we have the police? It was an international decision taken by the United Nations under the United Nations Convention Against Corruption (UNCAC); and it came into force in 2006. But before then, ICPC had been put in place and started in year 2000. And when you look at the ICPC Act; it attempts to redefine corruption. It says here: corruption includes bribery, fraud and other related offences. And in describing it, it has in different sections stated what constitute corruption, which I’m going to list. And as I’m listing these offences that fall under corruption, I will tell you whether it is also what is internationally acceptable under the international convention; and then I will tell you what section of the article of the UNCAC convention you’ll find it, and where it falls under our own ICPC Act as well. The first is Bribery in Public Offices. That of UNCAC also covers it. If you look at Article 15 and 16 of UNCAC, it is very clear what constitutes bribery in public and private office. Our own Section 8 and 9 takes care of it. Then the criminal code itself does not address it very clearly, but if you look at sections 8, 9 and 10 of the ICPC Act, it is very well addressed. As I’m speaking, mark the topical words I’m using because you cannot arrest me on the road for an offence which is not recognised by law. Abuse of Office is the second one, which is Article 19 of UNCAC and comes under Section 19 of the ICPC Act. And if you look at Section 104 of the Criminal Code, you will also find this there. Illicit Enrichment comes under Article 20 of UNCAC and Section 44.2 of our own Act and if you leaf through that, it describes exactly what that stands for. The next is Trading in Influence. That sounds strange because nobody has actually seen it as an offence. I walk into your office and I say that I have been sent by the president, that this contract you are about to award must be awarded to me and now drop my card or the president’s card on the table. This is also an offence under corrupt practice. It falls under Article 18 of UNCAC and Section 22.1 of the ICPC Acts. You might find all these strange; even some lawyers who are not into cases of corruption may not know this. Let me just read out Section 22.1 to buttress my point. “any person, who without lawful authority or reasonable excuse offers an advantage to a public servant as an inducement to or reward for or otherwise on account of such public servant giving assistance or using influence or having giving assistance or using influence in the promotion, execution, and preparing of the contract with the public body or any such contact or even the payment….” You’ve done your job, but you’re not getting your money from the accounts department, and you then go to meet with an official and offer him something to try and facilitate the release of the money; this is a corrupt offence. I know this happens every day but we need people to know and desist. There is also what is known as Virement. Virement is when the government has already provided for the building of let’s say the Third Mainland Bridge, and then wrongfully, you move the money to go and construct Lagos-Ibadan road. This is in Article 17 of UNCAC and section 22.5 of the ICPC Act. In fact, they don’t waste time about it under UNCAC, they simply call it what it is, Misappropriation. The appropriation was made, but you deliberately miss it. But in our local parlance, we just call it stealing. But technically, are they the same? Stealing has its own definition, which is taking what does not belong to you, with the intention of not returning it.

Before you go on with the listing, you spoke about Illicit Enrichment. That might look like stealing, from the lay man’s point of view. Can you explain it further?

Now this is what is causing the controversy everywhere. If it’s not Panadol, then it is not Panadol. Illicit enrichment is exactly what it means. It stands on its own and you must use its ingredients to prove your case in the court of law. I cannot use the elements that constitute stealing to jail somebody under corrupt enrichment. It’s just like what I just explained as misappropriation. A man moves money meant for job A to execute job B; and you clearly see the evidence that a job has been done and that a kobo has not gone into his pocket. Now, while we won’t say he hasn’t committed a crime, the fact remains that his crime, technically is misappropriation, not stealing.

Can you also throw more light on what constitute Illicit Enrichment?

I will answer that question by taking you through Section 44.2 of the ICPC Act: I see you are grade level 10 officer and I see you driving the most expensive car in town, which clearly your salary cannot afford, it behoves on me as the Chairman of the ICPC to cause you to explain how you have been able to acquire the car. And if you can’t explain it, it then comes under Illicit Enrichment.

You were talking about Virement….

Yes, back to Virement and Misappropriation. Under Virement and Misappropriation, we still have certain offences like award of contract without cash backing. You award a contract and allow the contractor to raise money and do a job and now turn around to say to him that “Sorry no money was appropriated for the contract from the beginning.” This is an offence under corrupt practices. Another category is Inflating Prices of Goods and Services. This comes under Article 17 of UNCAC and 22.3 of ICPC. And then we have Obstruction of Justice. This is also under the criminal code. One thing that you will not find in UNCAC is Making False Statement, which comes under our Section 25. You fill asset declaration form and say you have one house and in the course of investigation, we discover that some other houses that you have ascribed to some of your relations actually belong to you. If we investigate and eventually find out, you will be prosecuted under this section, because you are deliberately intending to mislead us. If you’re planning a fraudulent act and we have concrete evidence against you and are able to nip it in the bud, we can still charge you under that Section 22 of our own Act. And it comes under Article 27 of UNCAC. It’s a worldwide phenomenon and it’s nothing restricted to Nigeria alone. But two other corrupt offences listed in the ICPC Act but which are not under UNCAC are Failure to Report Bribery. You’re sitting with somebody and you hear him saying I offered bribe to that man or I settle am, using the local parlance; and you walk away. You can be tried under the ICPC Act; because you should report to the authority having come into knowledge of such information. The one that you would find very interesting is Making False Report or Petition. Are we not all victims of that? “I was annoyed, that’s why I made the report etc.” And we have actually investigated some of those false petitions. The very last one I’d like to talk about under the ICPC Act, which is very common, is Fraudulent Receipt of contract. If for example, you are a civil servant and you register a company and you use your connection with another civil servant in another department to take jobs, you will be tried under this section. So these are the offences categorized under our act and this is what we should be prosecuting as our corruption mandate. If you see me sending my staff to go and begin to pursue illegal oil bunkerers, is that my schedule? But if you ask some people, they’ll tell you that oil bunkering is corruption and why is the ICPC not charging them? Every organisations that is set up has guiding principles within which they have to operate and it is very clear that the anti-corruption Commission is meant to address those acts against the state that deprive the citizens of the funds and resources that the government needs for their development and are now used for private gains; especially by public officers. And to help us look at what we should be focusing on, internationally, that is why UNCAC says that every country should have an anti-corruption body to address corruption issues, outside of the police. Under our own criminal code, ‘theft’ is the word used for stealing. And theft they say “goes far beyond the scope of corruption, including the taking of any property or valuable by a person with no right to it. In the example above, a by-stander or outsider who stole eight packages from a truck will be committing a theft, but not corruption.” This is why the term embezzlement, which is essentially the theft of valuables property by someone to whom they were entrusted in the first place is commonly used to describe corruption cases. So embezzlement is clearly corruption.

Maybe this is one area where the public and the Commission are in agreement. I mean embezzlement as ‘stealing’.

Nobody disagrees with that. You see if I in anti-corruption begins to go to the market place to arrest people who steal pepper and I get them convicted and at the end of the day, they asked ‘how many cases have you prosecuted?’ And I say 1000. Have I addressed corruption? It would just mean that I am just presenting this statistics to deceive everybody that I’m working, whereas the truth is that one man who sat in his office and embezzles money is worse than a thousand thieves. The man who stole that pepper would be reported to the police, not me, if we are to stay focused on corruption. Now there was this UNCAC review team that came to Nigeria just last month and all the issues I have listed here were the ones they wanted to see in the statistics. They wanted to see the categories of charges under Bribery, under Illicit Enrichment, False Report etc. They wanted to see how many we arrested, prosecuted and convicted.

What are those things that hamper prosecution of corruption cases? Is it the ambiguity of the law or what?

No. The prosecution of corruption cases is a new venture that started with the passing of the ICPC Act. The ICPC Act was the first Act that came dealing with cases of corruption alone in 2000. EFCC followed in 2004. But before then, we had the Code of Conduct Bureau, which was already in the constitution that you must declare your assets as a public officer. So judges were now beginning to have to look at the elements that constitute corruption and to do that, you must look at the ICPC Act or EFCC Act, not what was in the criminal code. And because it was taking too much time, an appeal was made to the judiciary, and we now have two anti-corruption judges in each state, to expedite actions in the prosecution of corruption cases in court. The ICPC Act had 90 days within which all corruption cases must be prosecuted, but the Supreme Court struck it out, saying it was illegal, probably because the restriction was allowing justice to be miscarried. We don’t have any problem with that, but the EFCC Act provided specifically that no interlocutory injunctions and applications would be entertained in the course of corruption charges. So whether you are raising your appeal to the Appeal Court or Supreme Court, the case is going on. But we don’t have a similar provision in our own Act, so one lawyer can raise an objection on a matter that is going on and the matter will go on and on from the Appeal Court to the Supreme Court. If you don’t do credible investigations in cases, you cannot sustain convictions. Your investigations have to be thorough. We’ve taken care of that aspect now. And then there is also inter-agency co-operation and collaboration. If there are certain things I cannot find in my system, I can go to the police, I can go to the EFCC or SSS. We are having more of such co-operations now. And all these are meant to speed up prosecution of corruption cases. We’ve been having joint meetings of head of anti-corruption bodies as well. And then we’re now training our staff jointly, so that they can understand that they can co-operate if they need each other’s assistance. And of course, in corruption cases, we are not just after anybody but some of the rich and powerful men in society who have the money to get the best lawyers in town.

The Farouk Lawan versus Femi Otedola case is another corruption case that seems to have gone on for too long. What’s happening?

I cannot fast-track judgments. I think you need to understand the roles of anti-corruption agencies and prosecution agencies. The moment you’ve concluded your investigations and the case is in court, your business is to co-operate with the court and the defence to get the matter moving forward.

Could it still be that the Commission has not come up with a strong enough investigations to get a conviction?

If it wasn’t strong enough, it would have been thrown out. There are so many reasons that might account for delays or arise in the process of trials. Sometimes you find that the judge handling the case is also on the election tribunal, and so the case would have to be halted until he is back. Or maybe at a certain point he is elevated to a higher Bench, which also affects the process; or the defence lawyers will just come up with all kinds of processes to delay, hoping that after a while, the process will die down.

You spoke of how the EFCC had a clause built into its act that seems to side-step all such kind of lawyers’ tricks; can’t the ICPC build in this kind of clause to eliminate these clogs?

Oh, we have made that proposal. If you notice, the Criminal Justice Reform is currently going on now and that is one of the things we’re looking at.

How about making a representation at the on-going National Conference, regarding these impediments?

Yes we have made a presentation to Ledum Mitie, who is the chairman of the Committee on Corruption. At every opportunity that we have, we would always make a representation.

It seems to have taken the ICPC too long to come out to tell Nigerians that corruption is not stealing, because it now looks like you have a herculean task ahead of you, convincing the public.

You see, that statement was credited when we were signing an MOU with COREN (the Council for the Regulation of Engineering in Nigeria), and the example we gave there was that in this MOU that we are signing, don’t come and be telling us that this person stole this from the work site and so on, and that that is not our headache. We then told them that it is the engineer who in the process of executing a government contract abuses his office that we are interested in. The reporter now went out to report something else, and misconstrued it completely, so as to tally with what he already had in mind. Now having looked at all the offences we are dealing with, and what the international community expects of us, what is your own submission as a person? We can be running around in circles and thinking we are achieving anything, whereas we are doing a total disservice to our country. If I stand up now and say that having fever alone is not an indication of malaria, I’d be taken up. But fever is also a by-product of other ailments.

Can you make a distinction between the duties of ICPC and the EFCC? I can tell you that a lot of people still confuse the roles of both agencies.

That’ll be because they have not taken time to look at our Acts. The name EFCC is Economic and Financial Crimes Commission and their duties are clearly spelt out: terrorism financing, all activities to do with illegal oil bunkering…. When the Civil Defence or the Navy arrests illegal oil bunkerers, who do they take them to? The EFCC. So if you are involved in corrupting financial processes at the macro economic level, it is EFCC matter. But when it comes to abuse of office by government officials, then the ICPC will get involved, because that is what it is set up to do. But that is not enough to say that what is essentially an economic crime might not end up involving a public officer. I might also start off by investigating a public officer for abuse of office, which is out of the mandate of the ICPC, but at the end of the day, it ends up as an economic crime; the law now permits me to try him under the EFCC Act. The same can happen with the EFCC.

The ICPC seems to have done more barking than biting, since its inception. A good example here would be the case of the erstwhile Bayelsa State governor Diepriye Alameyesigha, and even James Ibori of Delta State, who spent most of their time in power engaging in war of words with the then chairman, Justice Mustapha Akanbi, but were only checkmated by the British officials. Were there some kinds of impediments hampering the agency?

Well, that was the era before I came in. Besides, I don’t even know the context of the matter and I wouldn’t want to just make statements. But you know that the EFCC even tried to arrest them, and did arrest one. And they were successfully tried. One was convicted here and the other who supposedly escaped; his matter is being reopened again.

The conviction of former Commissioner of the National Insurance Commission (NAICOM), Chief Okechukwu Chukwulozie, in February was a major achievement for your commission; what other major big fish conviction have you secured?

One thing I have learnt now is not to just shoot up names. But if you want, I can have our legal department send you a copy of the convictions. In fact, that is why we published the ICPC Law Report, volume one, which detailed the major convictions that we have achieved and the processes that went on in court. I’d rather send it from the legal department, so that there is no ambiguity whatsoever. And that’s why I am seriously advocating for a corruption beat in the media, different from crime beat, so that corruption reporters will follow cases of corruption permanently from the moment they break out, through to the court. Because we forget things very fast in this country!

There is also the case of the oil subsidy thieves of 2012. Everything seems to have gone quiet.

Well that’s not under our jurisdiction. It is under the jurisdiction of the EFCC. That’s why you really need to know the mandates very well.

Well your roles appear really inter-twined.

Let me tell you, there is no case on earth that is not intertwined.

Generally, the feeling out there amongst Nigerians is that the war against corruption is lost. What is the ray of hope that the people should have?

I’m happy you used the word perception. Now perception and reality sometimes don’t match. So the mass media and we as individuals have a massive responsibility to educate our people. People are not even talking about areas, where we have achieved monumental breakthroughs; like the mobile phone. Before mobile telephones came, were you not queuing in front of NITEL to make international calls? Or if you had it in your house, were you not giving some staff money to make sure it is working? Those staff who were collecting those monies come under the definition of corruption. That was pure corruption because they were abusing their office. And that is why we arrested a PHCN official in Abuja and the matter is in court. He was collecting money from a contractor before issuing a letter. And that is why we arrested a staff of the Federal Civil Service Commission for insisting on collecting a bribe before he does his job on the file. Another area of major conquest of corruption is the issuance of international passport. You know how long it used to take to get an international passport. Probably about one year; and you must know somebody. But today, the maximum you need is two days, unless you have not supplied all the requirements. Are we saying there is no improvement? Is the corruption there not eliminated now? Are we celebrating it?

You spoke of how it is an offence when you come into the knowledge of a corruption offence, such as bribery and you fail to report. How often do Nigerians come forward to give your agency such information?

The only time you see people reporting is when you see it on Twitter. And if you’re eventually able to find one of such persons, they say I heard it from a friend. But the same digital technology has helped us. I’m sure you’ve heard of people who have taken pictures of bribe-taking at road blocks, causing the Inspector General to dismissing such officers and having them prosecuted immediately. That is an aspect of reporting corruption cases, for which I commend those who were able to take those pictures. I also believe that people are scared that their identities might be released. But we have provision under our Act to even punish our staff if such informants’ identities are released. So they should know that they are protected. But for now, few Nigerians are coming forward directly to give us any such information.

And what’s your word to the public about this?

Report any acts of corruption because corruption takes away your inheritance. Corruption takes away your hospitals, takes away your good roads, takes away your good educational institutions. And that’s why I have always defined corruption in concrete terms, so that you can feel it. It translates to somebody who has taken away something that could have benefitted you and your family, abusing his office to do so. I will not be running after the armed robber, who comes to your house and still takes away your property. You will go to the police to report that because it is not under my mandate. But if the pen robber takes away your property, using his office, it comes under corruption. That is why I have stated that stealing is corruption under the ICPC Act, if it involves abuse of office by a public officer. That is in section 19: Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relations or associate of the public officer or any other public officer shall be guilty of an offence and shall on condition be liable to imprisonment for five years without an option of fine. See, this covers stealing and to underline its strictness, it has no option of fine. But if that same public officer goes to a Supermarket to steal one television set, it does not come under this section. So he will not be brought to the ICPC, he will be taken to the police.